Botukam Narsaiah vs State of Andhra Pradesh

N.Y. Hanumanthappa, J.—The accused in Sessions Case No. 581 of 1994 filed this Criminal Appeal aggrieved by conviction recorded against him for the offence u/s 302 1PC and sentence of imprisonment for life.

The gravamen of the charge against the accused is that the accused subjected his wife, Botukam Padma, to ill-treatment, harassment and cruelty prior to 14.5.1994 to extract dowry of Rs. 3,000/- and that on 14.5.1994 at about 10 p.m. at Nagulapat village he caused the death of his wife by pouring kerosene on her and setting fire to her within seven years of her marriage and thereby committed offences punishable under Sections 498A, 302 and 304B, 1PC.

The case of the prosecution is as follows :

The sole accused was the husband of the deceased Botukam Padma aged about 18 years belonging to a poor family. Accused married the deceased about an year ago. At the time of the marriage, the parents (P.Ws. 1 -and 2) of the deceased agreed to pay Rs. 3,000/- towards dowry but they could pay only Rs. 2,000/- at the time of the marriage and promised to pay the balance of the amount some time later. Due to their poverty, they could not pay the amount. Ever since the deceased Padma joined the accused at his house at Nagulapet, the accused started ill-treating her and treated her cruelly for not getting the balance amount of dowry. About fifteen days prior to the incident, the accused and the deceased went to Kondalawadi to attent a marriage of their relations.

On 14.5.1994 in the evening they returned to Nagulapet village. During the night, the accused again harassed the deceased for not getting the balance of dowry and informed her that if she failed to get the balance of dowry of Rs. 3,000/- he would have a second wife. The deceased started weeping and slept on the cot. At about 10.00 p.m. the accused picked up a kerosene tin and poured the kerosene on the deceased saying that she should die. When the deceased tried to escape from there, the accused set fire to her with a match stick. The flames engulfed the entire body of the deceased. She ran out crying for help. Father, mother and sister of the accused who were sleeping outside the house and neighbours extinguished the fire and shifted her to the Government Civil Hospital, Korutla, where she succumbed to her burns on 15.5.1994 at 8.30 a.m.

The accused pleaded not guilty for the charges. In support of its case, the prosecution examined P.Ws. 1 to 16 and marked Exs.Pl to P 20. No witnesses were examined on behalf of the defence nor any documents were marked. After considering the evidence on record, the Trial Court found the accused guilty and convicted him for the offence u/s 302, I.P.C. and acquitted him of the offences under Sections 498A and 304B, I.P.C.

P.W.I is the father of the deceased. His evidence is that he agreed to pay a dowry of Rs. 5,000/- at the time of the marriage of the deceased with tine accused but he did not pay any amount at the time of the marriage and that he does not know how the deceased Padma died and that there were no disputes between the deceased and the accused. He was treated hostile.

P.W. 2 is the mother of the deceased. She also stated that they did not pay any dowry to the accused and the accused never harassed the deceased. She was also treated hostile.

P.W. 3 is the younger brother of P. W.1. He also stated that the accused never harassed the deceased.

P.W. 4 is another younger brother of P.W.I. He stated that Padma died about one and half year ago and he does not know anything about this case.

P.W. 5 is the mother of P.W.I. She also stated that she does not know anything about the offence.

P.W.6 is the wife of P.W. 3 P.W. 7 stated he settled the alliance between the accused and the deceased and that the marriage took place one year prior to the offence and that no dowry was given at the time of her marriage.

P.W. 8 is a resident of Nagulapet village. His evidence is that on the date of offence at about 11.00 p.m. he heard some commotion and saw people running in the street. He also went out and saw the deceased with burns all over her body.

P.W.9 is a resident of Nagulapet village. He also saw the deceased with burns at about 11.00 p.m. P.Ws. l0 and 11 are the panch witnesses for the inquest and they were declared hostile.

P.W. 12 is the Mandal Revenue Officer, Korutla, who recorded the dying declaration of the deceased - Padma, and held inquest over the dead body of the deceased. P.W. 13 is the punch witness for the observation of the scene of offence. In his presence Deputy Superintendent of Police, Jagtial observed the scene of offence and seized M.O. 6 a blue coloured burnt Langa, M.O. 7 a burnt white flowers saree, M.O. 8 an iron tin containing kerosene, M.O. 9 one fish mark match box containing two match sticks under the cover of a mediators report Ex. P. 11.

P.W.14 is the Lady Medical Officer, who conducted post-mortem examination over the dead body of the deceased alongwith another lady Doctor Dr. Malathi on a requisition from the Mandal Revenue Officer, Korutla. She found the following burn injuries on the deceased Padma :

Lower part of the face, front side;

Front and back sides of the chest;

Front and back sides of the upper limbs (right and left);

Back side of the abdomen; and

Front and back sides of the both lower limbs.

She is of the opinion that the cause of death of the deceased is due to shock as a result of deep extensive burns and the injuries are sufficient to cause death in the ordinary course of nature. Ex. P. 13 is the post-mortem certificate.

F.W.15 is the Sub-Inspector of Police, Korutla. He rushed to the hospital on receipt of a telephone call from the Lady Medical Officer, Government Civil Hospital, Korutla. He recorded the statement of Padma and obtained her thumb mark on it. Ex. P. 14 is the statement of the deceased. P.W. 15 returned to the Police Station and registered it as a case in Crime No. 48/94 and issued the First Information Report Ex. P. 15. He also gave a requisition to the Mandal Revenue Officer, Korutla -P.W. 12 to record the dying declaration of the deceased. After receipt of the intimation of death, he altered the section of law in the First Information Report (Ex. P. 16).

P.W. 16 is the Deputy Superintendent of Police, Jagtial, who took up investigation in this case. He gave a requisition to the Mandal Revenue Officer, Korutla (P.W.12) to conduct inquest over the deal body of the deceased, Padma. He went to the scene of offence, examined it in the presence of P.W. 13 and another and seized M.Os. 6, 8 and 9 under the cover of Mediator''s report Ex. P. 11.

Mr. P. Raghava Reddy, learned Counsel for the appellant attacked the judgment and order of the Trial Court on the ground that in the absence of any proof about the accused harassing the deceased for the balance of dowry amount, which was not established, and the accused being acquitted of the charges under Sections 498A and 304B, I.P.C. The Trial Court erred in convicting the accused of an offence u/s 302, I.P.C. No explanation as to recording of two Dying Declarations within half an hour is put forth by the prosecution. Since one dying declaration is contradicting the other, the accused should have been given the benefit of doubt. There is no explanation as to why the person, who went to the place of P.W. 1 and informed about the incident, mentioned in Ex. P. 1 was not examined, he contended that the conviction on the basis of dying declaration recorded by the Sub-Inspector of Police, Korutla (P.W. 15) is illegal. In support of his contention, he placed reliance on the decision of the Gauhati High Court in Bilaluddin and Others Vs. The State of Assam, , wherein reference has been made to the decision of the Supreme Court rendered in Karnesh Kumar Singh and Others Vs. The State of Uttar Pradesh, , for the proposition that if evidence is full of infirmities and the persons present at the place of occurrence are not examined on the basis of dying declaration, the same will be a serious infirmity and conviction will not hold good.

The learned Public Prosecutor appearing for the State supported the findings of the Court below. According to him, even if the evidence of eye witnesses are ignored, the dying declaration of the deceased will remain. If the dying declarations recorded by P.Ws. 12 and 15 are read together, it will be clear that the accused was responsible for causing the death of the deceased. Acquittal of the accused under Sections 498A and 304B, IPC cannot be a ground for his acquittal of the offence u/s 302, IPC and the decision of Gauhati High Court relied on by the Counsel for the accused has no application to the facts of this case.

We have perused the entire judgment and order of the Trial Court more particularly with respect to the evidence collected. As far as eye witnesses are concerned, it is difficult to accept the version as the majority of them are treated hostile. There is no explanations as to why two dying declarations are recorded and the contents of the dying declaration recorded by the Sub-Inspector of Police (P.W.15) differ from the dying declaration recorded by the Executive Magistrate (P.W.12). At the time of recording the first dying declaration and the second dying declaration the relatives of the deceased were not heard. There is no explanation as to why the parents, the sister of the accused and others, who were available and extinguished the fire as told by the deceased at the time of giving the first dying declaration, were not examined. There are also other inconsistencies in the evidence of the prosecution. There are two different dying declarations and the persons named in the complaint were not examined. A conviction can rest on a dying declaration verily implies that the declaration must inspire confidence so as to make it safe to act upon. The infirmities in the evidence of the witnesses speaking out fact of dying declaration made the fact shaky and doubtful. The Gauhati High Court in Bilahuddin''s case (supra) held as follows :

"Prosecution should not adopt device to withhold material witnesses from whom the truth was likely to be unfolded. Its duty is to assist Court to come to a correct decision. Prosecution need not multiply witnesses if a large number of persons see and know about the occurrence, but where the persons first arrived and find the injured immediately after infliction of injuries and regarded more essential witnesses on point of dying declaration than the witnesses coming lately at the moment of dying or after death."

Thus, the High Court of Gauhati laid down the principle that if the prosecution withholds from examining material and essential witnesses, an adverse inference has to be drawn and it is a serious infirmity in establishing its case.

In our view, the infirmities pointed out by the Counsel for the accused deserves serious consideration and needs to be accepted. If that is so, the findings of the Trial Court would have been quite different. Accordingly, since we have taken view other than the one taken by the Sessions Judge; there is no alternative but to acquit the accused. Accordingly, this Appeal is allowed. The order of conviction and sentence of the accused vide the judgment under appeal is set aside and he is acquitted of the charges and set at liberty forthwith, if not required in any other case.